James v. Richmond & D.R. Co.

• Decision Date: 20 May 1891
• Citation: 9 So. 335,92 Ala. 231
• Court: Alabama Supreme Court
• Parties: JAMES v. RICHMOND & D. R. CO.

9 So. 335

92 Ala. 231

JAMES v. RICHMOND & D. R. CO.

Supreme Court of Alabama

May 20, 1891

Appeal from city court of Birmingham; H. A. SHARPE, Judge,

This action was brought by the appellant, Kate James, as the administratrix of Will Roberts, deceased, against the appellee corporation, and sought to recover damages for the killing of plaintiff's intestate, which was alleged to have been caused by the negligence of the defendant. The cause was tried without the intervention of a jury, as authorized by statute, and judgment was rendered for one cent damages. All the facts are sufficiently set forth in the opinion of this court. The plaintiff brings this appeal, and assigns the judgment of the lower court as error.

Bowman & Harsh, for appellant.

James Weatherly, for appellee.

STONE C.J.

This case was tried, under the statute, without a jury. The suit was brought by the administratrix of an employe of the defendant railroad company, under sections 2590, 2591, of the Code of 1886. The gravamen of the suit is the negligent killing of plaintiff's intestate, caused by the fall of a trestle alleged to have been imperfectly constructed, or to have become decayed from age, or worn out with use. There is but little controversy as to the cause or manner of the injury. The complaint was framed under subdivision 1, § 2590, and the testimony, we think, proves the averment that the trestle was defective. The city court found all the issues in favor of the plaintiff, and we find nothing in the record to cause us to reverse its finding. Judgment was given for the plaintiff for one cent damages and from that judgment plaintiff prosecutes this appeal. The sole inquiry in this case is whether the testimony discloses any elements of actual, substantial damages, as contradistinguished from what the law denominates "nominal damages." What is known in England as "Lord Campbell's Act" (9 & 10 Vict.) was followed on this side of the Atlantic with legislative enactments on the same subject by many state legislatures. Most of the statutes in America, which go into particulars enumerate substantially the same descriptions of tort, whether of commission or of negligent omission, as did Lord Campbell's act, in declaring the grounds on which this new statutory remedy may be successfully invoked. This has given rise to the phrase, found in many of the reported cases and text-books, that statutes in this country are substantial copies of their English predecessor. It has been used by this court. Railway Co. v. Holborn, 84 Ala. 133, 4 South. Rep. 146. The remark is true, so far as the several states assume to define the wrongs, for which they provide a mode of redress. That was the question in Holborn's Case. In declaring and defining the persons entitled to the benefit of the recovery, in cases in which death ensues from the injury complained of, the English statute has this language: "That every such action shall be for the benefit of the wife, husband, parent, and child of the person whose death shall have been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased; and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death, to the parties, respectively, for whom and for whose benefit such action shall be brought." (The italics are ours.) This statute expressly directs the inquiry of damages, not to the injury, suffering, or loss sustained by the deceased in the loss of life, but confines it to the injury suffered by the parties for whose benefit the suit is brought; namely, "the wife, husband, parent, child" of the deceased, as the case may be. This precludes all inquiry of physical or mental suffering, and all compensation therefor. It does more. It denies all right to recover substantial damages, unless there is some person in being who falls within some of the classes for whose benefit the suit is prosecuted, and who will or may suffer injury from the death of the deceased. Blake v. Railway Co., 18 Q. B. 93. The court in that case said "that the claim for damages must be founded on pecuniary loss, actual or expected, and that mere injury to feelings could not be considered. It is also clear that the damages are not to be given merely in reference to the loss of a legal right, for they are to be distributed among relations only, and not to all individuals sustaining a loss; and accordingly the practice has not been to ascertain what benefit could have been enforced by the claimants, had the deceased lived, and give damages limited thereby. If, then, the damages are not to be calculated on either of these principles, nothing remains except that they should be calculated in reference to a reasonable expectation of pecuniary benefit, as of right or otherwise, from the continuance of life." The states of New York, New Jersey, Tennessee, North Carolina, Ohio, Illinois, and Michigan have statutory provisions more or less similar to that copied from the English statute. Hence, in rulings upon their statutes, there could properly be no recovery of damages for torts, other than those which inflicted injury on those for whose benefit the statute declared the right of action was conferred. Tilley v. Railroad Co., 24 N.Y. 471; Telfer v. Railroad Co., 30 N. J. Law, 188; Safford v. Drew, 3 Duer, 627; Railroad Co. v. Morris, 26 Ill. 400; Railroad Co. v. Weldon, 52 Ill. 290; City of Chicago v. Scholten, 75 Ill. 468, Railway Co. v. Bayfield, 37 Mich. 205. Our statute provides that, "when a personal injury is received by a servant or employe in the service or business of the master or employer, the master or employer is liable to answer in damages to such servant or employe, as if he were a stranger, and not engaged in such service or employment." Code, § 2590. "If such injury results in the death of the servant or employe, his personal representative is entitled to maintain an action therefor, and the damages recovered are not subject to the payment of debts or liabilities, but shall be distributed according to the statute of distribution." Id. § 2591. The right of the administrator "of a stranger, not engaged in such service or employment," to maintain such action was conferred by act approved February 5, 1872, (Sess. Acts, 83,) and is now section 2589 of the Code of 1886. The statute, which is now section 2590 of the Code, was approved February 12, 1885. Sess. Acts, 115. The provisions of the former statute, as expressed in section 2589, are that "a personal representative may maintain an action, and recover such damages as the jury may assess, for the wrongful act, omission, or negligence of any person or persons or corporation, his or their servants or agents, whereby the death of his testator or intestate was caused, if the testator or intestate could have maintained an action for such wrongful act, omission, or negligence if it had not caused death, *** and the damages recovered are not subject to the payment of the debts or liabilities of the testator or intestate, but must be distributed according to the statute of distributions." The statutory provisions of many other states on the subject of damages, and who are to be benefited by the recovery, in suits like the present one, are like ours in all that affects the question we have in hand. Of this class are Pennsylvania, Virginia, Georgia, Indiana, Iowa, Wisconsin, and Texas. We have not examined as to other states.

Our statute, in my opinion, does not proceed on the idea that the distributees of the damages to be recovered had been deprived of benefits to be derived from the continued life of the victim of the wrongful injury. Hence it makes no allusion to "injury" to them, "resulting from such death," as the measure, or even a factor, in the damages to be assessed by the jury. The damages to be...